State v. Carreno-Maldonado

• Decision Date: 19 September 2006
• Docket Number: No. 33039-3-II.,33039-3-II.
• Citation: 143 P.3d 343,135 Wn. App. 77
• Court: Washington Court of Appeals
• Parties: STATE of Washington, Respondent, v. Alfredo CARRENO-MALDONADO, Appellant.

143 P.3d 343

135 Wn. App. 77

STATE of Washington, Respondent, v. Alfredo CARRENO-MALDONADO, Appellant.

No. 33039-3-II.

Court of Appeals of Washington, Division 2.

September 19, 2006.

COPYRIGHT MATERIAL OMITTED

Todd Andrew Campbell, Pierce County Pros. Attorneys Office, Tacoma, WA, for Respondent.

Rita Joan Griffith, Attorney at Law, Seattle, WA, for Appellant.

QUINN-BRINTNALL, C.J.

¶ 1 Alfredo Carreno Maldonado appeals the trial court's denial of his motion to withdraw his guilty plea. We hold that the deputy prosecutor's statements at the sentencing hearing breached the plea agreement by undercutting the State's agreed sentence recommendation. Because such error is not subject to harmless error analysis, we reverse and remand.

FACTS

¶ 2 The State charged Carreno-Maldonado with 15 counts: 9 counts of first degree rape, 2 counts of second degree rape, 2 counts of first degree robbery, 1 count of first degree kidnapping, and 1 count of second degree assault. The parties subsequently entered into a plea agreement whereby Carreno-Maldonado agreed to plead guilty to seven counts: one count of first degree rape, five counts of second degree rape, and one count of second degree assault. In exchange for the guilty plea, the State agreed to recommend concurrent sentences of (1) a low-end standard range sentence of 240 months for the first degree rape count; (2) a midpoint standard range sentence of 240 months for the five second degree rape counts; and (3) a high-end standard range sentence of 84 months for the second degree assault count.¹

¶ 3 The court accepted Carreno-Maldonado's Alford² plea. At the sentencing hearing, the court set out the standard range sentences and acknowledged having reviewed the presentence investigation report (PSI) and the plea agreements. When the court asked if the State had anything to add, the deputy prosecutor replied:

Your Honor, I just wanted to speak on behalf of the victims. I would note that there are three victims in the courtroom today. There are a total of seven victims in this case. Two of them we were never able to connect with, solidly anyway. . . . But, we do have three women here today. It's my understanding they are just here to observe. They don't want to speak to the court.[³] And, I just wanted to make a brief statement on their behalf. As Your Honor probably noticed in reading the declaration of probable cause and in taking the plea and reading the PSI, this is a case of a defendant who engaged in very extreme violent behavior for the purpose of obtaining what he calls or is quoted as saying "free sex." It's the [S]tate's position that he preyed on what would normally be considered a vulnerable segment of our community and these women are vulnerable insofar as they are exposed to the kind of people that [Carreno-Maldonado] is. They're the type of victims that probably make the best victims and maybe [Carreno-Maldonado] recognized that; that they were less likely to report the crimes to the police. If they even do get to that point they're less likely to come to court and testify or be involved whatsoever in the prosecution process. That was the case for a couple of the victims that were charged in this case. However, not necessarily for all of them. It took sometimes more effort to get some of these victims to come in and make statements but they eventually did. I'm not sure what else I can say because these crimes are so heinous and so violent it showed a complete disregard and disrespect for these women. Clerk's Papers (CP) at 84-85 (emphasis added).

¶ 4 Defense counsel objected to the State's comments, suggesting that the State was failing to comply with the plea agreement and attempting to prejudice Carreno-Maldonado. The State made the following response:

I'm speaking here on behalf of the victims and on behalf of the [S]tate[.] And I'm not going beyond my recommendation in this case. It's an agreed recommendation. M[y] recommendation [for the second degree rape is] 240 months. This is an indeterminate sentencing case. So the Department of Corrections will determine the defendant's actual release date. With regard to the [first degree rape] the [S]tate is recommending the low end of 240 months. And, then with regard to the [second degree assault] the range is 63 to 84 months and the [S]tate is recommending 84 months.

With the comments that I have made they were on behalf of the victims . . . who, again, are here just to observe. And I would ask that you follow the recommendation.

CP at 86. Defense counsel renewed his objection to the State's remarks, but the superior court responded, "Well, the [S]tate's remarks do not have a bearing on this court's decision." CP at 88-89.

¶ 5 After hearing from Carreno-Maldonado, the superior court stated:

Well, the problem we have here is at the time I listened to the motions to sever this case and at the time I took this plea and reviewed the probable cause statement and I read the presentence report, what we have is a predatory rapist. A man who is basically preying upon vulnerable victims within a geographical radius. The violence of the attacks was escalating. And, if he had not been caught it would have probably been a matter of time before he seriously injured or killed someone.

CP at 91-92. The superior court then sentenced Carreno-Maldonado to concurrent high-end sentences on all counts: 318 months to life for first degree rape; 280 months to life for each of the five second degree rapes; and 84 months for the second degree assault.

¶ 6 Defense counsel renewed his objection to the prosecutor's remarks and reserved for the record the ability to seek withdrawal of Carreno-Maldonado's guilty plea. The superior court stated:

The court paid very little attention to [the State's] remarks. I know what her recommendation was. Her arguments played very little part in this court's ruling. It's the court's concerns based on the nature of the attacks, upon the escalating violence, the increasing frequency of the attacks and the fact that he was apparently preying on a segment of the population within a specific area, all of which are hallmarks of a predatory rapist.

CP at 93. Three days later, Carreno-Maldonado moved to withdraw his guilty plea. The superior court denied his motion: "Well I remember this fairly clearly. Quite frankly when this court reviewed the presentence report and given the high incidents and the number of victims and the escalating nature of the attacks and a host of other factors, [the State's comments] played no part in my decision." Report of Proceedings at 10-11.

¶ 7 Carreno-Maldonado appeals the court's denial of his motion to withdraw his guilty plea. CP at 79.

ANALYSIS

¶ 8 On appeal, Carreno-Maldonado asserts that the State breached the plea agreement by undercutting the agreed sentencing recommendation. Specifically, he asserts that the deputy prosecutor addressed the sentencing court using words that mirror the statutory aggravating factors and thus was arguing for an exceptional sentence. He maintains that as a result of the breach, he is entitled to withdraw his guilty plea. The State maintains that it did not breach the agreement because it has a right to speak on the victims' behalf at the sentencing hearing.

¶ 9 We address two issues: First, whether the State breached the plea agreement; and second, if it did, is the error harmless.

BREACH OF PLEA AGREEMENT

PROSECUTOR'S COMMENTS ON BEHALF OF THE STATE

¶ 10 A plea agreement is a contract between the State and the defendant. State v. Sledge, 133 Wash.2d 828, 838, 947 P.2d 1199 (1997). Because a defendant gives up important constitutional rights by agreeing to a plea bargain, the State must adhere to the terms of the agreement by recommending the agreed-upon sentence. Sledge, 133 Wash.2d at 839, 947 P.2d 1199. Although the State need not enthusiastically make the sentencing recommendation, "[it] is obliged to act in good faith, participate in the sentencing proceedings, answer the court's questions candidly in accordance with [the duty of candor towards the tribunal] and, consistent with RCW 9.94A.460, not hold back relevant information regarding the plea agreement." State v. Talley, 134 Wash.2d 176, 183, 949 P.2d 358 (1998). The State's duty of good faith requires that it not undercut the terms of the agreement explicitly or implicitly by conduct evidencing an intent to circumvent the terms of the plea agreement. Sledge, 133 Wash.2d at 840, 947 P.2d 1199; State v. Jerde, 93 Wash.App. 774, 780, 970 P.2d 781, review denied, 138 Wash.2d 1002, 984 P.2d 1033 (1999). We review a prosecutor's actions and comments objectively from the sentencing record as a whole to determine whether the plea agreement was breached. Jerde, 93 Wash.App. at 780, 970 P.2d 781.

¶ 11 A breach occurs when the State offers unsolicited information by way of report, testimony, or argument that undercuts the State's obligations under the plea agreement. See, e.g., State v. Xaviar, 117 Wash.App. 196, 200-02, 69 P.3d 901 (2003) (breach where prosecutor referred to aggravating sentencing factors and other charges not pursued and called the defendant one of the most "prolific child molesters"); State v. Van Buren, 101 Wash.App. 206, 217, 2 P.3d 991 (breach where prosecutor downplayed mid-range sentencing recommendation and focused the court's attention on three aggravating factors), review denied, 142 Wash.2d 1015, 16 P.3d 1265 (2000); Jerde, 93 Wash. App. at 782, 970 P.2d 781 (breach where prosecutor emphasized aggravating factors when obligated to make a mid-range sentencing recommendation). But the State does not breach the agreement when it reiterates certain facts necessary to support a high-end standard range recommendation. See, e.g., State v. Monroe, 126 Wash.App. 435, 440, 109 P.3d 449 (2005) (finding no breach when the prosecutor recounted salient facts supporting the State's high-end sentencing recommendation and then unequivocally urged the...